You Can’t Have Your Cake and Eat it Too

You have often heard the expression “you can’t have your cake and eat it, too.” (1) But that’s exactly what the insurance companies try to do in handling claims. Whatever the situation, they try to argue that means the injured person wasn’t hurt very much. Sometimes they create a problem, and then try to benefit from it. Just the other day I had a case with a claims adjuster where this expression applies.

To give you a little history, the claim involved a motor vehicle intersection accident where our client sustained soft tissue injuries. The collision was so hard his car was totaled. Even though there was an independent non-biased eyewitness who told the police officer at the scene that the defendant (the other driver) had indeed run the red light, and the police officer charged him, the defendant claimed to his insurance company that he had a green light. The defendant’s insurance company did not initially accept that the defendant was responsible for causing the accident, and in fact dragged their feet in conducting their investigation. Finally, they accepted liability in the accident about two months later. Our client was taken by rescue squad directly from the scene to the emergency room where he was examined, and x-rays showed there were no fractures.

Our client was treated and given instructions to stay out of work and take some medications he was prescribed. He was also told to follow up with his primary care physician if needed. Like a lot of people, our client didn’t like going to doctors and thought if he just gave it time, he would get well. Also, he didn’t have any transportation because his car was a total loss, he was in a financial bind because he was unable to work due to his injuries, and he also didn’t have any health insurance.

Because of the delay in the insurance company accepting liability for the accident, our client was unable to seek any further medical care. When the insurance company finally accepted liability and settled his claim for the damage to (loss of) his car, our client was able to purchase a replacement vehicle which enabled him to get to his doctor. When he saw his family doctor about 60 days after the accident, the doctor sent him for physical therapy for eight weeks. With that treatment and the medications, our client made a good recovery, and when he returned to his doctor, the doctor released him from further care for his injuries. (Our client wasn’t completely well, but had recovered to the point the doctor felt he would go on to a complete recovery in the next few weeks without any further treatment).

After we obtained all the medical records and bills and a verification of his time missed from work, we submitted our client’s case to the insurance carrier for settlement discussions. The adjuster’s first offer was only $700.00 over the hospital emergency room bill, and her justification was that because of the delay in treatment from the initial emergency room visit until 60 days later, she couldn’t consider any treatment except the emergency room visit. The adjuster then argued that our client had failed to “mitigate his damages” (2) by following up with his doctor sooner, and that because of the gap, our client’s treatment was prolonged. Therefore, the insurance company would not be responsible for the later treatment. I explained to the adjuster that the reason why the client had not sought further care was because of transportation and financial issues which were caused by the negligence of their insured and the insurance company’s own delay. I further pointed out that our client had indeed practiced “mitigation” of his damages by not going to his family doctor until it was clear that the medications, rest, and staying out of work were not going to allow him to recover.

After several months of negotiations, the claims adjuster finally agreed with my explanation, but only accepted the medical bills for only the first 4 weeks of physical therapy. When I asked why, the adjuster stated that for soft tissue injuries the standard time period for recovery was three months, and that was in the middle of the physical therapy. I pointed out to the adjuster that this “standard” (3) was at best an average, which meant that half the people with these injuries took longer. Furthermore, everybody wouldn’t be at the average unless we were all “cloned”, which is certainly not the case, and that every accident is different with varying forces of impact, different body positions, and many other variables that make recovery time highly variable and unpredictable. Negotiations are continuing, and we will probably have to file a lawsuit.

So the insurance company wants to unreasonably delay accepting responsibility in a case, and then wants to complain the effects of their delay mean they should pay less to the injured person in settlement. (4) Now if that doesn’t fit the expression of “wanting to have their cake and eat it too”, then “I’ll eat my hat.” Oops, oops.

(1) The phrase’s earliest recording is from 1546 as “wolde you bothe eate your cake, and have your cake?” (John Heywood’s ‘A dialogue Conteinyng the Nomber in Effect of All the Prouerbes in the Englishe Tongue’)[1] alluding to the impossibility of eating your cake and still having it afterwards; the modern version (where the clauses are reversed) is a corruption which was first signaled in 1812. Paul Brians, Professor of English at Washington State University, points out that perhaps a more logical or easier to understand version of this saying is: “You can’t eat your cake and have it too”. Professor Brians writes that a common source of confusion about this idiom stems from the verb to have which in this case indicates that once eaten, possession of the cake is no longer possible. See “Common Errors in English: Eat Cake”. Washington State University. http://wsu.edu/?brians/errors/eatcake.html.

(2) The “duty to mitigate damages” means that a person must take reasonable steps to reduce their losses, which usually means for injuries to seek medical attention and then follow the doctor’s advice. However, a duty to mitigate damages is violated only to the extent that the failure causes the losses to be greater. See Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983). In this case, there was no indication that our client’s injuries lasted longer or were more expensive to treat due to the delay in treatment. Many doctors do not believe that physical therapy should be prescribed immediately after an injury, but instead there should be some healing of the acute injury before starting physical therapy.

(3) Even the most conservative doctors usually agree that these injuries may take up to a year to recover. Depending on age and pre-existing structural conditions, many people may take longer than that or even have permanent injuries.

(4) Fortunately, juries rarely accept these ridiculous arguments, and usually understand the “reasonable efforts” required to mitigate damages include waiting to see if soft tissue injuries are going to heal with time, rest and medications, before seeking additional treatment. But it’s unfortunate that a lawsuit and maybe trial is necessary to get a fair recovery for somebody who has been injured by someone else’s carelessness. And then the insurance companies complain the system doesn’t work because there are so many lawsuits!